Human rights and the rule of law in Southern Africa … and other interesting places

Mental Health law in Zambia

The law in Zambia provides some protection for individuals suffering from mental illness. Specifically, The Persons with Disabilities Act, an act from 2012 provides ‘… for the care of persons suffering from mental disorder or mental defect …’ and prohibits calling a person with a disability by any derogatory name because of their disability. Further, the Constitution of Zambia prohibits the creation of laws that may be discriminatory either in themselves or their effect. It also prohibits discrimination on the basis of disability and recognises human dignity, social justice, equality and non-discrimination.

the Mental Disorders Act (an act from 1949) uses derogatory and old-fashioned terms to assign people suffering from mental illness to categories of idiot, imbecile, moral imbecile and feeble minded.

However, section 5 of the Mental Disorders Act (an act from 1949) uses derogatory and old-fashioned terms to assign people suffering from mental illness to categories of idiot, imbecile, moral imbecile and feeble minded. Further, the law does not go far enough to ensure that the mentally disabled are treated humanely at health institutions and in detention and that they have equal access to health services at the primary care level.

To rectify this issue, the High Court in Lusaka heard a case (Mwewa v The Attorney General 2017/HP/204) brought to challenge the inherent unfairness of the law. It was specifically alleged that the law unjustifiably violated the rights of the mentally disabled to dignity, personal liberty, and protection from torture and inhuman or degrading treatment as well as the right to constitutional protection and freedom from discrimination.

In a landmark decision with significant consequences for mental health law in Zambia the Court held that:

Referring to the mentally disabled as idiot, imbecile, moral imbecile or feeble minded was highly offensive, derogatory and discriminatory and as a result, section 5 of the Mental Health Act was unconstitutional and declared null and void.

In cases where a person was able to make a sound decision, the authorities should be able to allow such a person to give their consent to being detained or admitted to prison or medical institutions.

Authorities at mental health institutions were to ensure that patients at the facilities were treated in the most humane way.

Every person was supposed to be provided health care services without discrimination. Persons with disabilities were to enjoy the same health range, quality and standard of services and treatment as provided to others.

The case has huge implications for mental health law in Zambia. Firstly, individuals suffering from mental disabilities now have the right to challenge people who refer to them by derogatory and offensive terms. Specifically, they can refuse to be categorised as idiot, imbecile, moral imbecile or feeble-minded—terms which until this case were perfectly legal when diagnosing the mentally disabled. Additionally, where individuals can make sound decisions, they now have the right to be allowed to consent to being detained; they have the right to be provided with healthcare services without discrimination and to access mental health treatment at the primary health care level.

It should be noted that Zambia currently has a Mental Health bill, it is hoped that the bill will take into account this recent decision of the High Court.